I am writing to you regarding the assessment of the New South Wales Ocean (NSW) Trap and Line Fishery (OTLF) under the Environment Protection and Biodiversity Conservation Act 1999
(EPBC Act). My Delegate, Andrew McNee, wrote to you on 29 November 2005 advising that he had declared the OTLF an approved Wildlife Trade Operation (WTO) for a 3 month period, subject to a number of conditions, and also accredited the fishery under the protected species provisions of section 245 (cetaceans) and section 265 (listed marine species) of Part 13 of the EPBC Act. At the time he noted a number of concerns with the ecological sustainability of the existing operations of the fishery, in particular with excess fishing effort, overfished species and impacts on protected grey nurse sharks and possibly also great white sharks. The conditions of the short term WTO required NSW Department of Primary Industries (DPI) to take steps to address these concerns to improve the ecological sustainability of the OTLF in the short term.

The Delegate wrote to you again on 24 February 2006 advising of his decision to extend the existing WTO for the OTLF until 31 July 2006 to allow NSW DPI to complete the Environmental Impact Assessment (EIA) process for the fishery and bring into effect, through the outcomes of the EIA, a range of new management measures to specifically address the above concerns and other risks identified in the EIA of the OTLF.

I acknowledge your determination of 10 July 2006 under the provisions of the NSWEnvironmental Planning and Assessment Act 1979 that requires, as an outcome of the EIA process for the OTLF, substantial modifications to the fishery to address a range of environmental impacts due to the fishery’s activities. I also note that these modifications will primarily be implemented through the final Fishery Management Strategy (FMS) developed as part of the Environmental Impact Statement for the fishery. The resultant measures arising from your determination of the fishery that will be incorporated into the final FMS should substantially enhance performance assessment, catch monitoring, stock assessment, improve controls on fishing effort and reduce impacts on high risk shark species such as grey nurse sharks and significantly improve the ecological sustainability of the OTLF in the medium to longer term.

Accordingly, I have decided to make a new declaration for the OTLF as an approved WTO.

Given the need to take immediate action to address the more prominent risks already identified for grey nurse sharks and with excess fishing effort currently in the fishery, I have decided to make this WTO declaration valid for a short term period expiring on 14 December 2007 to ensure NSW DPI gives priority to further addressing the immediate risks with the fishery. The WTO will therefore be subject to the conditions at Attachment A.

These conditions include finalisation and formal approval of the FMS for the OTLF by the end of November 2006. As the FMS is the key component for implementing the range of measures resulting from the EIA process to improve the ecological sustainability of the OTLF, I consider it should remain a high priority with NSW DPI to ensure that the final FMS is brought into effect as soon as possible. Please note that if any WTO condition is not met, I am compelled under the EPBC Act to revoke the WTO declaration.

Subject to the implementation of the WTO conditions, my Department will further review the OTLF in 2007 to determine any further export approval of the fishery beyond December 2007.

While there are still some environmental risks associated with this fishery, I believe that NSW DPI is committed, through the FMS and other outcomes of the EIA process, to addressing these issues and is already taking proactive steps in some areas. To supplement the actions arising from the EIA process, officers from our two departments have identified a range of additional issues and have recommended actions to improve the ecologically sustainable management of the fishery in the short to medium term. The recommendations (Attachment B) have been an important factor, along with the outcomes of the EIA process and the conditions attached to the WTO, in my decision to declare the fishery an approved WTO.

I accept that the relatively short term duration of the new WTO may prevent NSW DPI from fully implementing all recommendations by the expiry of the WTO period and that some of these recommendations may continue to apply in any further extension of the WTO. Nonetheless, the recommendations address essential changes required for the medium to longer term ecological sustainability of the fishery and I would expect substantial progress to be made on them by NSW DPI when the extension of the WTO is reviewed by my Department in late 2007.

Given the recent commitments through the FMS to address the risks to shark species, I am satisfied that the management arrangements for the fishery require that all reasonable steps are taken to ensure that protected species are not injured or killed and the level of interactions with such species in the fishery is not likely to adversely affect the conservation status of protected species or the survival and recovery of listed threatened species. Hence, the proposed additional management arrangements for the OTLF should meet the requirements of sections 208A (listed threatened species), 222A (listed migratory species), 245 (cetaceans) and 265 (listed marine species) of Part 13 of the EPBC Act and I propose to accredit the management arrangements accordingly. Accreditation will ensure that individual fishers operating in accordance with the management arrangements are not required to seek permits in relation to interactions with protected species in Commonwealth waters.

I acknowledge the commitment under the OTLF FMS for NSW DPI to implement fishing closures to address the medium to high risks presented by existing commercial fishing operations on all key grey nurse shark aggregation sites in NSW waters. I would expect that these closures would provide at least the equivalent scale of area protection afforded to existing grey nurse shark Critical Habitat areas in NSW waters and that the need for closure areas up to 1,500 metres, as raised in the EIA process for the fishery, will be carefully considered before the new closures are implemented.

I am also concerned that threats to grey nurse shark survival from other sources, in particular recreational fishing, are still not adequately addressed. I note that your Department is yet to finalise and implement the NSW recovery plan for grey nurse sharks that would provide the necessary platform to address the risks to grey nurse shark survival and recovery that arise from a wide range of sources in NSW waters.

I also understand that considerable concern about the lack of action on this recovery plan has been raised with your Department and that the National Shark Recovery Group, of which NSW DPI is a member, has given high priority to implementing recovering actions for grey nurse shark.

I consider that the absence of a NSW recovery plan, to complement the Commonwealth recovery plan for grey nurse shark that has been in place since 2002, is a significant risk to the ongoing protection of grey nurse shark populations.

As the east coast population of grey nurse sharks is listed as critically endangered under the EPBC Act, I strongly urge you to give priority to ensuring your Department implements the NSW recovery plan as soon as possible. I will ask my Department to closely monitor progress on this issue in the context of the next review of the OTLF for further export approval under the EPBC Act.

I would like to thank you for the cooperation of your officials on this assessment and look forward to your formal endorsement of the WTO conditions and recommendations associated with the assessment of the OTLF and receiving the final version of the approved FMS for the fishery.

Operation of the fishery will be carried out in accordance with the restricted entry management regime in force under the New South Wales (NSW) Fisheries Management Act 1994.

The NSW Department of Primary Industries (DPI) to advise the Department of the Environment and Heritage (DEH) of any material change to the Ocean Trap and Line Fishery’s (OTLF) management arrangements that could negatively affect the assessment of the fishery against the criteria of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), within three months of that change being made.

A report to be produced and presented to DEH by 16 November 2007, and to include:

information sufficient to allow assessment of the progress of NSW DPI in implementing the conditions and recommendations made; and

the status of the OTLF performance indicators compared to the trigger points.

The Fishery Management Strategy (FMS) for the NSW OTLF to be finalised and approved by end of November 2006.

NSW DPI to develop and implement, within 12 months of the approval of the FMS:

further measures that provide an effective interim cap on active effort in the OTLF; and

a strategy, including effort targets, milestones and associated trigger points, for achieving an ecologically sustainable level of fishing effort for each sector of the fishery.

NSW DPI to develop and implement, by 16 November 2007:

fishery closures of appropriate area for grey nurse sharks as required under the Preferred Strategy Report; and

a targeted monitoring program to help evaluate the effectiveness of the grey nurse shark fishery closures.

Recommendations to the New South Wales (NSW) Department of Primary Industries (DPI) on the ecologically sustainable management of the NSW Ocean Trap and Line Fishery (OTLF)

NSW DPI to implement finer scale temporal and spatial logbook reporting in the OTLF to improve the robustness of resource assessments and allow for enhanced cross-jurisdictional cooperation.

NSW DPI to develop and implement a robust system to validate catch and effort logbook data.

NSW DPI to implement a system to improve the identification and recording of elasmobranch species taken in the OTLF.

NSW DPI to develop a robust and regular fishery assessment that provides a basis for management decisions, which are precautionary and recognise uncertainty and level of risk. The assessment process will examine the exploitation status of the primary and key secondary species using resource assessment tiers.

NSW DPI to institute programs to provide appropriate estimates of the harvest rates of OTLF primary and key secondary species by the recreational and Indigenous sectors and incorporate these data into the fishery resource assessment process.

NSW DPI to review the effectiveness of size limits, fish trap escape panels, fishery closures and other relevant management measures for snapper stocks and implement any changes required to further promote the rebuilding of stocks to ecologically sustainable levels.

NSW DPI, within 12 months of approval of the Fishery Management Strategy, to consult with the Australian Fisheries Management Authority (AFMA) and implement compatible management measures to limit the take of deepwater dogfish and other deepwater shark species of concern and support rebuilding of the relevant shark stocks.

NSW DPI to cooperate with other relevant jurisdictions to pursue complementary management and research of shared stocks for all relevant primary and key secondary OTLF species. In particular, DPI will consult with AFMA in relation to setting compatible harvest measures for shared target stocks such as silver trevally, eastern gemfish, blue-eye trevalla and gummy shark in the Southern and Eastern Scalefish and Shark Fishery and with the Queensland Department of Primary Industries and Fisheries in relation to spanner crab and snapper.

NSW DPI to develop and implement a recovery strategy for all OTLF primary and key secondary species classified as recruitment overfished, within 6 months of the species being so classified. For species categorised as growth overfished, the status of the stocks will be reviewed and specific measures implemented, as required, within 12 months to prevent the stocks from becoming recruitment overfished.

By the end of November 2007, DPI to develop and implement a system sufficient to identify changes in the composition and quantity of bycatch over time and establish more robust estimates of interactions with threatened and protected species in the OTLF.